The "Yes on 1" signs have come down, and the 2012 marriage equality campaign in Maine is but a memory. Same-sex couples have been able to marry since last December, and hundreds have already exchanged vows. Many more are making wedding plans for the temperate summer months.
After four hard-fought years, the battle for marriage equality is finally over in Maine. But for the National Organization for Marriage (NOM), the nation's leading anti-LGBT organization, Maine remains front and center in a monumental legal struggle for its own survival. At stake last week before Maine's highest court was nothing less than NOM's fundamental mission: its multi-year effort to secretly and illegally funnel contributions from a few large unnamed donors to political causes across the country.
In 2009 Maine's Commission on Governmental Ethics and Election Practices opened an investigation of NOM to determine whether it had violated Maine's campaign finance laws by failing to disclose contributors to its ballot efforts. Four years later NOM still refuses to turn over documents subpoenaed by the commission. Instead, NOM has pulled out all the legal stops, filing multiple lawsuits, appealing to the U.S. Supreme Court and now fighting the commission's requests in the Maine Supreme Judicial Court, all in a massive effort to keep its donors secret.
But why? Why has NOM, despite countless legal defeats and mounting attorney's fees, gone to such great lengths to evade disclosure laws that hundreds if not thousands of other organizations regularly follow?
A Vehicle to Hide Donors
To understand the Maine legal battle, it is essential to revisit how NOM became the major national player funding anti-LGBT causes.
NOM's meteoric rise occurred in 2009, when a few large anti-LGBT funders, dismayed by scrutiny over their involvement in California's Proposition 8 campaign and the evolution of public opinion in support of marriage equality, decided that they needed a means to contribute to anti-LGBT political causes free from sunlight. NOM was perfectly positioned to fill this new role as a pass-through for these donors. As a 501(c)(4) organization not required to disclose its general donors, NOM offered, in its own words, "donor protection," and advertised itself as the way for large funders to contribute to ballot measures anonymously.
In its 2008-2009 board update, NOM outlined the service it could provide to donors wishing to avoid public scrutiny:
Given that a ballot measure is likely to be on the ballot to overturn Proposition 8 in 2010, that Maine may require additional funding, that both Iowa and New Hampshire require disclosure of donors for political activity -- it is critical that we have a reserve fund to give to these efforts to ensure victory and protect donor identity.
And so NOM grew and grew. From an organization with less than $500,000 in revenue in 2007, NOM rose to become a $7-million behemoth by 2009, bolstered by a few mega-donors encouraged to give anonymously through NOM rather than contribute directly and publicly to anti-LGBT political campaigns. (In 2010 NOM reported more than $9.5 million in receipts.)
But this growth wasn't accompanied by an equivalent increase in grassroots support. In fact, NOM has never been a broad-based activist group. Rather, its funding comes primarily from fewer than 10 large donors. In 2009 more than 75 percent of its budget came from just five donors, a trend that continues through the present day, even as NOM has started to see an decline in its overall revenue.
NOM's Maine Legal Problems
NOM decided to test its new secret campaign strategy in the first post-Prop. 8 ballot measure, Maine's Question 1, in 2009. Trying to avoid the outcry that had accompanied public disclosure of contributions to advance Prop. 8, NOM thought it had found a better way. Give to us, NOM said, and we'll fund the Maine campaign from undisclosed general funds rather than through a publicly disclosed PAC. By the end of the campaign, NOM had funneled $1.93 million from its donors to Stand for Marriage Maine, almost two thirds of the total funds spent by opponents of same-sex marriage.
All seemed well except for one problem: The scheme wasn't legal. State campaign finance laws, including Maine's, require disclosure of contributions solicited for the purpose of supporting political activities such as ballot measures or candidate campaigns. These laws, which have existed for decades, make it possible for the public to know who is funding political campaigns. This knowledge is critical for ensuring public accountability and avoiding corruption.
Prompted by a complaint filed by activist Fred Karger, the Maine commission initiated an investigation in late 2009 to determine if NOM had indeed broken state law. Evidence clearly demonstrated that NOM had sent emails soliciting donors to contribute to its Maine efforts but had failed to establish a PAC and disclose its donors as required by Maine law.
In early 2010 the commission issued subpoenas to NOM and its president, Brian Brown, requiring them to testify about the sources of NOM's revenue in 2009, including the identity of its large donors. NOM refused to cooperate and launched a series of legal challenges in federal and state courts. A federal magistrate, the District Court, the First Circuit and even the U.S. Supreme Court uniformly rejected NOM's claims.
This takes us to last week. More than three years after the first ballot measure and four months after marriage equality became the law in Maine, NOM's legal stonewalling drags on. Standing before the state Supreme Judicial Court, NOM's lawyer Kaylan Phillips once again asserted that the anti-LGBT organization, alone among the participants in the ballot measure campaigns, should not have been required to form a PAC and reveal its donors. Her arguments failed to receive a sympathetic response from Chief Justice Leigh Saufley, who questioned why NOM is re-litigating claims that it has already made unsuccessfully in federal court.
Litigating for Secrecy
Across the country since 2008, NOM's focus has turned to overturning campaign finance laws in order to be able to operate covertly. The organization has even set up its own in-house litigation practice, the ActRight Legal Foundation, to advance its mission. In cases from California to Washington to Maine, NOM has fought disclosure by falsely arguing that its donors have been and will be victimized and harassed. Courts have uniformly rejected these claims, a point emphasized by the Maine commission and reinforced by the chief justice at oral argument.
For NOM, this litigation is more than just a side endeavor. Indeed, NOM's very survival depends on it being able to serve as an illegal pass-through for a few secret donors to fund discrimination against LGBT Americans. Maine voters removed the roadblocks to marriage last November. If Maine's regulators finally have their way, NOM's game, its modus operandi, may also soon be over.